Grounds for Divorce

The grounds for divorce in England and Wales have recently been changed and are contained in Section 1 of the Divorce, Dissolution and Separation Act 2020 (DDSA 2020), which replaced Section 1(3) of the Matrimonial Causes Act 1973 (MCA 1973).

Under the new law, there is now one ground for divorce, which is that the marriage has irretrievably broken down. Further, a statement that a marriage has irretrievably broken down is treated as conclusive evidence of that fact, which is in contrast to the law under the MCA 1973, in which parties were required to give evidence of one or more of five ‘fault based’ facts to establish the irretrievable breakdown of the marriage.

Further, under the DDSA 2020, it is possible for applications to be made on a joint basis, meaning there can be an ‘Applicant 1’ and an ‘Applicant 2’. Under the old law, this was not possible.

The law for civil partners is contained in Section 44(4) of the Civil Partnership Act 2004 as amended by Section 3(5) DDSA 2020 and also holds that a statement that a civil partnership has irretrievably broken down is conclusive evidence of that fact.

Process and Timeline for Divorce

There are broadly three stages to obtaining a divorce, and the process takes a minimum of 26 weeks. There is no separation requirement.

Stage 1 – Divorce application is issued.

20 weeks after the Divorce application is issued, the applicant(s) can apply for a Conditional Order.

Stage 2 – Conditional Order is pronounced.

The applicant(s) may apply for Final Order 43 days after Conditional Order is pronounced. If the applicant does not apply for Final Order, the respondent can do so after a further three months from the day on which the applicant could first have applied.

Stage 3 – Final Order is pronounced.

At this stage, the marriage is dissolved.

Rules for Service of Divorce Proceedings

The rules for service are contained in Part 6 of the Family Procedure Rules 2010 as amended by Statutory Instrument 2022/44 (FPR) and have been updated. Generally, the application will be served within the jurisdiction by the court by email, which has become one of the primary methods of service. Service within the jurisdiction or outside of the jurisdiction must be effected within 28 days according to the method of service chosen, unless this time limit is extended.

Religious Marriages

To be legally valid, a religious marriage (other than marriage according to the rites and ceremonies of the Church of England and the Church in Wales, and Jewish and Quaker marriage) must generally take place in a registered building. If a couple celebrate their marriage at a place of worship, or venue, that has not been registered for marriage, then the couple are required to go through an additional civil ceremony in order for their marriage to be valid under English law.

Annulment and Judicial Separation

Annulment is a different way to end a marriage. It is possible to annul a marriage in the first year of a marriage (unlike divorce). A marriage can be annulled if it was never legally valid and therefore ‘void’, or if it was legally valid but meets one of the conditions that makes it ‘voidable’.

Examples of void marriages include those where the parties are too closely related, or one or both of the parties was underage when they married, or one of the parties was already married. Although a void marriage never existed, parties may require a decree of nullity to prove this, for example, if they want to get married again.

A marriage may be voidable for a number of reasons including that the marriage was never consummated, that a party did not properly consent to the marriage and that the other person had a sexually transmitted disease.

Parties may wish to separate legally but not divorce. This may be for many reasons, for example, due to religious convictions. Parties can apply to court for a legal separation in these circumstances. This application can be made on a joint basis or via a sole application. The application form is called a ‘judicial separation application form’ and is on Form D8S.

Jurisdictional Grounds to Commence Divorce Proceedings

As of 1 January 2021, the courts in England and Wales have jurisdiction to entertain proceedings for divorce, judicial separation or nullity if the court has jurisdiction under Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973) (as amended).

Under the DMPA 1973, the English court will only have jurisdiction if on the date of the application at least one of the below conditions is satisfied:

• Both parties are habitual residents of England and Wales.
• Both parties were habitual residents as a couple here, and one of them still lives here.
• One party wants to start a divorce, and their spouse is habitually resident in England and Wales.
• One party wants to start a divorce and has lived in England and Wales for at least 12 months.
• One party wants to start a divorce, has lived here for six months, and is also domiciled here.
• Both parties are domiciled in England and Wales.
• One of the parties is domiciled in England and Wales.

Jurisdiction in relation to the marriage of same-sex couples is regulated by the DMPA 1973, Section 5(5A) and Sch A1; and the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014, SI 2014/543 (as amended by the Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc) (EU Exit) Regulations 2019, SI 2019/495 and the Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022, SI 2022/237).

These laws import the same jurisdictional requirements for the dissolution of the partnership/marriage with one important addition.Same-sex couples who marry in England or Wales, but remain or become habitually resident/domiciled in another country, may not be able to end their marriage in that country if it does not recognise the existence of the relationship. England and Wales is therefore a ‘jurisdiction of last resort’ so that same-sex couples may have their case heard. The courts in England and Wales will be able to assume jurisdiction if the couple were married in England or Wales and where it is the interests of justice to do so.

Domicile, Residence and Nationality

Domicile is a relevant factor in determining jurisdiction as set out in the DMPA 1973. A person can only ever have one domicile at one time. Your country of domicile is the country you consider home; however, your domicile can change with time. For example, your ‘domicile of origin’ is normally the domicile of your father on your birth and is commonly the country where you were born. This may change due to a domicile of dependence, if you move countries when you are under 18 with your parents. A domicile of choice can be obtained through physical presence in a country in combination with an intention to permanently remain there.

Residence, and in particular habitual residence, is a relevant factor in determining jurisdiction as set out in the DMPA 1973. England and Wales have recently left the EU but it is considered likely that they will continue to use the same definition of habitual residence as was used in the EU when they departed. If you are habitually resident in a country, this means that your day-to-day life happens in that country.

Nationality is often used interchangeably with citizenship, but its definition is actually a little bit wider. A British citizen is a passport holder, but a British national would also include various classes of British (overseas) citizen. If a person changes nationality, this may be one of the factors in determining whether they have an intention to permanently remain in that country, so whilst it is a completely distinct concept from domicile, there is a link between them. Apart from this link, it has no relevance to jurisdiction.

Contesting Jurisdiction

An application may only be disputed on limited grounds now that there is no-fault divorce. One of these is jurisdiction. Others include the validity of the marriage or civil partnership, fraud and procedural non-compliance.

For international and mobile clients, it is therefore important to take legal advice and check that the jurisdictional requirements for divorcing in England and Wales are met.

Stay of Proceedings

One spouse may dispute divorce on the ground of jurisdiction and issue divorce proceedings in another country. This will result in what are known as ‘parallel proceedings’. The court can exercise discretion to stay proceedings until the forum dispute has been determined.

The test the English court will use when deciding the appropriate forum for the divorce is the doctrine of ‘forum non conveniens’. The court will consider the links the parties have to both countries, including habitual residence, domicile, nationality, where any children attend school and in which country the parties hold assets. In addition to a stay, the court has, in limited circumstances, the power to make a personal injunction called a ‘Hemain injunction’.

A Hemain injunction is a temporary measure to prevent the other party from pursuing divorce proceedings in a foreign jurisdiction and is an option parties may pursue at an early stage of divorce proceedings where there are competing proceedings and steps have been taken by one party that make it iniquitous for the proceedings in the other country to proceed.

Grounds for Jurisdiction

The grounds for jurisdiction for financial remedy proceedings are the same as for divorce. As the jurisdiction for financial orders is linked to that for divorce proceedings, a party wishing to contest jurisdiction does so by contesting the jurisdiction for the divorce.

Financial Claims After a Foreign Divorce

Courts can hear financial claims after a foreign divorce in limited circumstances. Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) governs the bringing of financial claims after a foreign divorce; hence, they are often known as ‘Part III’ claims. There are various requirements before such relief can be offered:

• the foreign divorce must be recognised as legally valid;
• the party applying for relief must not have remarried; and
• there must be a sufficient connection to England and Wales.

The sufficient connection to England and Wales can be established via one of three ways as set out at Section 15 of the MFPA 1984:

• either the party or their former spouse must have been domiciled in England and Wales (ie, they consider it their true home) at the time of the foreign divorce or at the time of the application; or
• one of the parties must have been habitually resident in England and Wales (ie, their life has been mainly based here) for 12 months before the date on which the foreign divorce took effect or for 12 months before the date of the application; or
• one of the parties must have an interest in a property here that had been a matrimonial home (but in this case their claim is limited to the value of the property). The interest can be a beneficial interest, so their name does not necessarily need to be on the legal title.

Once the jurisdictional requirements are met, there are two stages to Part III claims:

• permission to apply; and
• the substantive application.

Permission to apply

Application is made pursuant to the FPR, Pt 18 and must be made without notice. The test for permission to apply is set out in Section 13 of the MFPA 1984: “the court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order”.

In determining whether to grant leave, the court will have regard to a number of factors, including the connection the parties have with England and Wales, the connection the parties have with the country where they got divorced and any financial benefit which the parties or a child of the family has received, or is likely to receive, in a different country. The full list of factors is set out at Section 16 of the MFPA 1984, and therefore Sections 13 and 16 of the MFPA 1984 should be read in conjunction with each other.

If leave is granted, the respondent in a leave application can apply to ‘set aside’ the granting of leave. The procedure for this has recently changed following the Supreme Court case of Potanina v Potanin [2024] UKSC 3. The test is now that the without notice order should be set aside because the test for granting leave under Section 13 is not met. Previously, the threshold was much higher, and respondents would have to show a ‘knock-out blow’ to the application for leave.

The substantive application

If leave is granted, then the relief available is the same as if the divorce had been conducted under English law.

Service of the financial application is generally done by email. There is no requirement for personal service within the jurisdiction.

Once proceedings are issued, a first hearing, called a ‘First Appointment’, is fixed, as well as the timetabling for the exchange of various documents including, most importantly, financial disclosure by way of a standard form called Form E.

At the First Appointment, the court sets out the timetabling for provision of further documents and reports particular to the case, including replies to questions raised and expert reports. A second hearing, called a Finance Dispute Resolution (FDR) hearing, is fixed.

The FDR hearing is a court-based mediation whereby the parties try to settle the issues in question. If the matter is not resolved, then another short directions hearing is listed where the matter is set down for a final hearing and further directions are given for the provision of, for example, witness statements.

The court will consider a number of factors when deciding how to exercise its discretion when dividing assets on divorce. These factors are contained in Section 25(2) of the MCA 1973:

• The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity. This includes any increase in that capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire;
• The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
• The standard of living enjoyed by the family before the breakdown of the marriage;
• The age of each party to the marriage and the duration of the marriage;
• Any physical or mental disability of either of the parties to the marriage;
• The contributions which each of the parties has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family; and
• The conduct of each of the parties, if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it.

The court will consider these factors in concert with case law from the Family Court. Whilst the court has an extremely broad discretion, there are guiding principles from the case law. The central ones are set out below:

• The court’s objective in applying Part II of the MCA 1973 is to achieve a fair outcome. To this end, there shall be no discrimination between the breadwinner and homemaker – White [2000] UKHL 54.
• There is no hierarchy in the Section 25 factors; which of them will carry most weight depends upon the facts of the particular case – Piglowska [1999] 3 All ER 632.
• In addition to the welfare of minor children, the court is guided by the three ‘strands’ of needs, sharing and compensation – Miller; McFarlane [2006] UKHL 24.

Financial Orders

The court can make a number of orders to regulate or reallocate assets on divorce. These are contained in the MCA 1973. These include:

• maintenance pending suit (Section 22);
• orders for payment in respect of legal services (ss22ZA);
• periodical payments and/or lump sum for a party to the marriage and the children (ss23);
• property adjustment orders (ss24); and
• various pension orders, including pension sharing orders (ss24B).

The court also has the power to vary a trust if the court is satisfied that it is a resource of the marriage. The Family Court can vary a trust in a divorce under Section 24(1)(c) of the MCA 1973 if it can be demonstrated that the trust is a ‘nuptial settlement’.

When using these powers, the court takes into account the issues set out above and, in particular, the parties’ need and the amount of matrimonial assets to be shared between the parties.

Identification and Disclosure of Assets

There is an ongoing duty to provide full and frank financial disclosure in financial proceedings. This duty includes all material facts, documents and other information relevant to the issues. As the duty of disclosure is ongoing, the court must be informed of any material change after initial disclosure was given.

Disclosure is evidenced through a document called Form E. In Form E, parties state their assets and income and append documentary evidence to the form. Foreign assets and income must still be declared on Form E.

The procedure for financial disclosure is set out in the ‘Statement on the Efficient Conduct of Financial Remedy Hearings Proceeding in the Financial Remedies Court Below High Court Judge Level’, and this streamlined process is designed to improve efficiency in financial proceedings.

Once Form A, which is the form used to start a request for a financial order in proceedings for divorce or ending a civil partnership, is filed, the First Appointment will be listed 12-16 weeks after Form A is issued. Parties are required to file Form E 35 days before the First Appointment.

Not less than 14 days before the First Appointment, each party must file with the court and serve on the other party:

• a concise statement of issues;
• a chronology;
• a questionnaire on the other party’s disclosure; and
• a notice stating whether the party is in a position to use the First Appointment as an FDR hearing.

At this point, the parties must also file a joint market appraisal in respect of each property currently used as a family home. If obtaining such evidence jointly has proved impossible, the parties should each file a market appraisal for each property and must be prepared to explain the reason for the impossibility to the court. Parties are also required to file brief indicative material as to their respective borrowing capacities and to file no more than three sets of property particulars as to what their case for themselves and the other party is likely to be on housing.

The purpose of the questionnaire is to flush out any issues of non-disclosure in the other party’s Form E. The questionnaire should not exceed four pages of A4 in length (using not smaller than a 12-point font with 1.5 spacing). This is to ensure questions asked are proportionate.

These processes allow the identification of matrimonial assets and information on the parties’ income.

The day before the First Appointment, the applicant must file with the court:

• a composite case summary using the Case Summary Template ES1; and
• a composite schedule of assets and income, based on the figures in the parties’ Forms E, using, unless wholly impractical, the Assets and Income Template ES2, on which any unagreed items must be clearly denoted.

Therefore, by the time of the First Appointment, the court will have an asset schedule and be able to identify the key assets in the case. At the First Appointment, the court will make numerous directions, including for formal valuations to be provided where appropriate and for replies to questionnaires to be filed. Through this ongoing process, the court is able to ultimately produce an asset schedule for the final hearing, which will be more accurate than the one at the First Appointment due to the disclosure directions given by the court.

Disclosure orders against third parties

It is possible for the court to order disclosure against third parties. Under FPR 21.2(3), the court may make an order only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs.

Under FPR 21.2(4) the order must:

• specify the documents or the classes of documents which the respondent must disclose; and
• require the respondent, when making disclosure, to specify any of those documents:
1. which are no longer in the respondent’s control; or
2. in respect of which the respondent claims a right or duty to withhold inspection.

Under FPR 21.3(1), a person may apply, without notice, for an order permitting that person to withhold disclosure of a document on the ground that disclosure would damage the public interest.

There is a distinction between orders for disclosure and orders for inspection. A party discloses a document by providing it, whereas inspection occurs when a disclosed document is inspected.

There are alternative procedures that the court may use when third parties are central to a proceeding, including:

• joining individuals to the proceedings (FPR 9.26B). this is done where it is desirable in order for the court to resolve the issue in dispute; and
• an order requiring the production of documents.

Trusts

The court recognises trusts. The court has a sophisticated set of tools to deal with them.

The court will first establish whether the trust is a ‘resource’ available to either party. It is a resource if that party can ask the trustees for financial support and it is, on the balance of probabilities, likely to be provided.

Once this hurdle has been passed, the court can make orders against the parties in the proceedings on the basis that the trustees will make a suitable distribution.

The court also has vast powers that it can use against the trust itself:

• in certain limited circumstances it can set it aside for being a sham; or
• it can vary its terms on the basis that it is an prenuptial or postnuptial settlement.

The court’s attitude to spousal maintenance is that awards for spousal maintenance should be made with reference to needs, save in a most exceptional case where it can be said that the sharing or compensation principle applies, per SS v NS [2014] EWHC 4183 (Fam).

Traditionally, the court has been relatively generous when assessing those needs compared to many other jurisdictions, but in recent years the length of time such orders should continue has come under scrutiny and has become shorter with an expectation the economically weaker party should be able to become financially independent sooner rather than later.

A party can apply for maintenance pending suit under Section 22 of the MCA 1973, before the final outcome of the division of finances on divorce. The court will need to assess firstly whether interim maintenance is appropriate and secondly what level of maintenance should be provided. This is done by an analysis of the parties’ respective income and income needs.

The court’s power to award spousal maintenance is set out at Section 23(1)(a) of the MCA 1973, and Section 23(1)(b) for secured periodical payments. The court will determine quantum by looking at the parties’ respective income needs and will make an award that takes these into account as well as the resources of the parties. The court will expect both parties to maximise their earning potential as much as they reasonably can.

Nuptial agreements are not legally binding under English law; however, following the seminal case of Radmacher (see below), they carry significant influence with the courts. Provided that certain procedural safeguards have been put in place, parties should assume that the court will hold them to the terms of the nuptial agreement. The court, however, retains its discretion to make a financial award that is contrary to the terms of a nuptial agreement, if it would not produce a fair outcome.

The seminal case of Radmacher v Granatino [2010] UKSC 42 marked a shift in the court’s approach to the implementation of nuptial agreements. In this case, the prenuptial agreement was to protect the wife’s substantial wealth. The husband sought to disregard the prenuptial agreement, but the Supreme Court held that the agreement should be largely upheld. In doing so, they put forward the following test:

“The court should give effect to a nuptial agreement that is freely entered into by each party with full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

The case has been interpreted by lower courts since the judgment was delivered and, at present, there are two major grounds on which the agreements can be challenged:

• the circumstances under which it was entered into were flawed – ie, there must be financial disclosure, independent legal representation and no undue pressure; or
• the outcome is unfair (which the courts seem to interpret as not meeting the parties’ needs).

The law has always recognised differences in its treatment of cohabitants and married couples (and since 2005, civil partners, and same-sex married couples since 13 March 2014). There is no equitable distribution of assets in cases where the parties are not married.

Unmarried couples who are not engaged must rely on civil law to establish any property rights that they may have. The key laws that affect the division of assets for unmarried couples include:

• express declarations of trust as to the division of property;
• constructive trusts;
• resulting trusts; and
• proprietary estoppel.

An unmarried partner is therefore exposed if they cannot engage any of these principles and will usually have no direct claim to assets of their spouse on a breakup.

If the parties have children, however, then a party may apply for provision under Schedule 1 to the Children Act 1989 (CA 1989), in circumstances where provision courtesy of the Child Maintenance Service is inadequate. Any order under Schedule 1 must be for the benefit of the child; however, periodical payments, lump sum orders, and transfers and settlements of property are possible.

An engaged party or formerly engaged party may seek to have their property rights determined under the Married Women’s Property Act 1882; however, they do not have the protection provided by the MCA 1973.

Cohabitants do not obtain additional rights by virtue of the length of cohabitation. The fact that parties who have been together for many years do not obtain legal protections is a source of controversy in the Family Court.

Methods of Ensuring Compliance

There are a number of tools at the court’s disposal to ensure compliance with a financial order, principally:

Attachment of earnings

This method is typically used to ensure compliance with maintenance obligations, by the deduction of money directly from the debtor’s earnings.

Warrant of control

A warrant of control authorises a county court bailiff to try to take control of the possessions of the debtor, provided they are given seven clear days’ notice. This method can be useful where the debtor has possessions of sufficient value to meet the debts.

Third party debt order

This is an order of the court that freezes money that might otherwise be paid to the debtor.

Charging order

If a charging order is granted to a creditor, the debtor cannot sell their property without discharging the debt through the net proceeds of sale.

Judgment summons

This is an application for a committal order.

Order for sale

Where the judge is concerned that a party will not pay the other party a lump sum due to historic non-compliance with court orders, the judge’s final order may be for a property to be sold to prohibit the paying party from being able to delay paying the receiving party monies awarded.

International Enforcement of a Financial Order

The enforcement of a foreign financial order in England and Wales is permitted if the order was made by a country which is party to a convention to which the UK is a signatory and the order is one covered by the treaty.

Furthermore, a party may be able to use the Part III jurisdiction described above to enforce orders if that is applicable.

Transparency is an issue in the Family Court due to the inherent conflict in many cases between Article 8 of the Human Rights Act, which protects the right to respect for parties’ private life, and Article 10, which protects freedom of expression and the principles of open justice. Accordingly, there is a lack of consensus among judges about the best approach to this issue and a lack of uniformity as to the extent that the press should report on cases.

There have been recent developments in this area. The Transparency Implementation Group published a report in April 2023 titled ‘Transparency in the Financial Remedies Court’ which gave a number of recommendations to increase transparency in the Family Court, and this report has led to a number of recent updates:

• As of 29 January 2024, the names of individuals in the Financial Remedies Court are published in court lists, along with an indication that the case deals with finances.
• Also on 29 January 2024, a pilot scheme was launched in London, Birmingham and Leeds. The pilot provides that:
1. reporters will be allowed to attend and report from court, save at FDR hearings;
2. in cases attended by a reporter, a Reporting Order should be made entitling the reporter to see the ES1 case summary and position statements of the parties and setting out what reporting is permitted in the case; and
3. district and circuit judges are encouraged to publish more judgments.

However, the pilot provides that reporters cannot name the parties, nor can identifying information be given, in the vast majority of cases. Privacy therefore remains a central concern of the court.

Parties are not able to anonymise proceedings. Anonymisation is controlled by the court, not the parties.

Out-of-Court Dispute Resolution Methods

Mediation is a frequently used method that parties use to resolve financial matters. In fact, before issuing financial remedy proceedings, parties must attend a MIAM (Mediation Information and Assessment Meeting) to see whether their case is suitable for mediation. During mediation, an independent mediator will meet with the parties (either together or separately) and attempt to facilitate the resolution of financial matters. The mediator is impartial and cannot give legal advice. This method is particularly popular in low-conflict cases; however, it may not be appropriate where there is a power imbalance in the relationship.

Early neutral evaluation and private FDR hearings involve both parties appointing a neutral evaluator (typically an experienced judge or barrister) to provide an indication as to what they think a fair outcome would be, following disclosure and submissions from the parties. This can facilitate settlement and prevent the unnecessary incurrence of legal fees associated with going to a final hearing at court. The indication is not binding, however, and therefore if the parties ignore the indications and do not negotiate reasonably thereafter, the legal fees associated with the FDR hearing are effectively wasted.

Arbitration is becoming increasingly popular as a method for parties to deal with financial disputes on divorce. Arbitrators must be members of the Institute of Family Law Arbitrators, governed by the Arbitration Scheme. The decision of the arbitrator is binding; however, their decision will need to be drafted as a court order and sealed by the court after the arbitral award is given. The key advantage of arbitration is that parties have more control over the process, as they can pick the arbitrator and the venue. Further, the process circumvents court time delays and therefore is quicker and can save costs.

Exemptions From Requirement for MIAM

Proceedings to which the MIAM requirements apply are set out in FPR 2010, PD 3A, paras 12–13. For the vast majority of financial remedy proceedings and private Children Act proceedings, a MIAM is required, prior to proceedings being issued. For the vast majority of financial remedy proceedings and private Children Act proceedings, a MIAM is required.

For financial remedy proceedings, a MIAM is not required where a consent order is being lodged or for enforcement of any order made in proceedings for a financial remedy or of any agreement made in or in contemplation of proceedings for a financial remedy.

In Children Act proceedings, a MIAM is not required for a consent order, for an order relating to a child or children in respect of whom there are ongoing emergency proceedings, care proceedings or supervision proceedings, or for an order relating to a child or children who are the subject of an emergency protection order, a care order or a supervision order.

There are various exemptions from the requirement for a MIAM. FPR 3.8(1) sets out the circumstances in which the MIAM requirement does not apply. The most commonly used one is for cases of domestic abuse.

Judges have a range of powers for non-compliance with the MIAM requirement, including directing that a party has to attend a MIAM and for proceedings to be adjourned to allow mediation to take place. Further, at the conclusion of proceedings, a judge can impose costs orders against the party that has not complied with the MIAM requirement.

A judge may also make a direction order that parties attend arbitration, and if such a direction is breached because one party does not attend the arbitration or refuses to engage with the arbitration process, that party can be ordered to meet the other’s legal costs.

Legal Status of Out-of-Court Agreements

Parties’ financial claims against each other upon divorce are only extinguished by a sealed financial order of the court. If parties reach an agreement through mediation, arbitration or any other alternative dispute resolution method, it is important that a court order is drafted and sent to the court to be sealed. Otherwise, an ex-spouse may issue financial remedy proceedings in the future.

Jurisdictional Grounds

Commonly, Children Act proceedings are brought on the ground that a child is habitually resident in England and Wales. This is a complex area of law, however, and the case of Re: S (A Child) (Jurisdiction) [2022] EWHC 1720 (Fam) provides a useful analysis of the jurisdictional framework in Children Act proceedings, now that the UK is not in the EU.

The provisions of Brussels II no longer apply to England and Wales. The 1996 Hague Convention and the Family Law Act 1986 set out the law of jurisdiction in Children Act proceedings.

Under the Hague Convention, the country in which the child is habitually resident will have jurisdiction, although there are exceptions to this rule. The rules relating to jurisdiction are found in Articles 5–14 of the Hague Convention. If the Hague Convention does not apply as one of the relevant countries is not a signatory, then the provisions of the Family Law Act 1986 will be used by the courts.

Section 2(1) of the Family Law Act 1986 states that welfare orders (which would include Section 8 child arrangements orders) can only be made if one of the following four conditions is satisfied:

• the court has jurisdiction under the Hague Convention (as above);
• the Hague Convention does not apply but the order sought arises in connection with divorce proceedings;
• the child is habitually resident in England and Wales; or
• the child is present in England and Wales and not habitually resident in any other country of the UK.

The court can also make orders under its ‘inherent jurisdiction’, which is a broad power that the court has to protect children in areas where statutory remedies are inadequate.

Domicile, Residence and Nationality

The concepts of domicile, residence and nationality are relevant considerations when determining jurisdiction upon a reading of the articles contained in the Hague Convention.

Article 5(1) of the Hague Convention provides that the judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property.

Article 8(1) provides that the authority of a Contracting State having jurisdiction under Article 5 or 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either:

• request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary; or
• suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

Article 8(2) provides that the Contracting States whose authorities may be addressed as provided in the preceding paragraph are:

• a State of which the child is a national;
• a State in which property of the child is located;
• a State whose authorities are seised of an application for divorce or legal separation of the child’s parents, or for annulment of their marriage; or
• a State with which the child has a substantial connection.

The nationality of a child will therefore be a relevant factor in determining which jurisdiction is suitable to hear an application, as will factors establishing a substantial connection of a child to a country (including domicile). Habitual residence, however, is the primary factor that will decide the issue of jurisdiction in most international cases.

Living/Contact Arrangements

If the parents do not agree on a child’s living arrangements and the time/contact they will have with each parent, either parent can apply to the court under Section 8 of the CA 1989 for a child arrangements order (note the MIAM requirement for most cases). The court will make a determination of future child arrangements on an analysis of the best interests of the child. The factors relevant to the court’s determination are set out in Section 1(3) of the CA 1989:

• the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
• their physical, emotional and educational needs;
• the likely effect on them of any change in their circumstances;
• their age, sex, background and any characteristics of theirs which the court considers relevant;
• any harm which they have suffered or are at risk of suffering;
• how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs; and
• the range of powers available to the court under the Act in the proceedings in question.

This is not an exhaustive list and the court will take a holistic approach and make a decision based on the child’s best interests.

Custody and Parental Responsibility

In England and Wales, a parent’s decision-making power is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” (Section 3(1) CA 1989). This authority is known as “parental responsibility” and empowers a person to make decisions in relation to, amongst other things, a child’s education and healthcare.

Parental responsibility is acquired automatically by a child’s father if they are:

• married to the child’s mother; or
• as of 2 December 2019, a civil partner of the child’s mother at the time of birth.

Alternatively, parental responsibility can be acquired by unmarried fathers in the following ways:

• by subsequently marrying, or as of 2 December 2019, becoming a civil partner of the child’s mother;
• by being registered as the child’s father on their birth certificate on or after 1 December 2003;
• by entering into a parental responsibility agreement with the child’s mother;
• by obtaining a parental responsibility order from the court, so long as the child is under 18; or
• by being formally appointed as the child’s guardian by the mother or by the court.

If the father is named as the parent with whom the child is to live, a parental responsibility order must be made. Such an order need only be considered if the father is named as someone with whom the child is to spend time.

Therefore, following the breakdown of a marriage or relationship, the parties will retain their parental responsibility (save if there is an order from the court to remove a party’s parental responsibility). Important decisions relating to a child must have the consent of all persons with parental responsibility. This would include matters such as schooling and medical decisions. If parties cannot agree, then they must make an application to court.

If, however, one parent obtains a ‘lives with’ child arrangements order during Children Act proceedings, they may take the child out of the jurisdiction for up to 28 days without the other parent’s consent. The court order in the Children Act proceedings can curtail the exercise of a parent’s parental responsibility by placing limits on what a parent can do with a child.

Restrictions on the Court’s Ability

A ‘lives with’ order will be legally binding until the child reaches the age of 18. Any contact arrangements laid out in a child arrangements order are usually legally binding until the child reaches the age of 16 (Section 91(10) of the CA 1989). Between the ages of 16 and 18 it will be up to the child to decide how much contact they would like to have with the parent they do not live with, and the court will be reluctant to interfere. This reflects the criteria in Section 1(3) of the CA 1989, as the ascertainable wishes and feelings of a child aged 16 carry more weight than they do for a young child.

Child Maintenance

Child maintenance is governed by the Child Support Act 1991 (CSA 1991). The CSA 1991 has been extensively amended by four later substantial sets of legislation: the Child Support Act 1995, the Social Security Act 1998, the Child Support, Pensions and Social Security Act 2000 and the Child Maintenance and Other Payments Act 2008.

The CSA 1991 stipulates at Section 1 that each parent of a ‘qualifying child’ is responsible for maintaining them.

A child is a ‘qualifying child’ if:

• one of their parents is, in relation to them, an absent parent; or
• both of their parents are, in relation to them, absent parents.

There is thus a legal obligation on a non-resident parent to pay money to the resident parent. This can be arranged privately between the parents (if the amount is agreed) or through the Child Maintenance Service (CMS), which is a government body that calculates the payments due under the legislation.

Under certain circumstances, mostly those that involve very high earners and where one party lives outside of the country, applications for child support can be make to the court.

Child maintenance is normally calculated by the CMS, which utilises a six-step process to calculate child maintenance due.

The formula used to calculate child maintenance is contained in CSA 1991, Schedule 1 (see in particular paras 2, 5A, 6 and 7). CS3 now applies, which is the third version of the formula.

CMS approach to calculating child maintenance

1. Gross income of the paying parent is worked out.

2. The CMS will then check for things that will affect this gross figure, for example, pension contributions.

3. The CMS will apply one of five rates for the paying parent (for all incomes above GBP200 gross per week the basic rate will be used).

4. The CMS will factor in any other children that the paying parent is supporting.

5. Using the first four steps, the CMS will calculate the weekly amount due.

6. A deduction will then take place where the child stays overnight with the paying parent.

Where the paying parent earns over GBP156,000 or either party lives abroad, the jurisdiction to make awards lies with the Family Court. Judges at the Family Court retain a broad discretion when adjudicating on the amount of maintenance due. The level of such child support has been growing over the years, and the court has recently delivered slightly conflicting judgments about the basis on which such maintenance should be calculated – whether on the basis of a fixed formula, on the basis of a consideration of the lifestyle of the child or on a more general basis.

Child Maintenance Agreements Without Court Involvement

Parties are at liberty to agree child maintenance arrangements without any involvement of the court or CMS. Only where there is a dispute will the court or CMS get involved.

Child Maintenance Orders

The Family Court retains jurisdiction to make orders on child maintenance where the paying parent earns more than GBP156,000 or a parent lives abroad. Further, the Family Court is able to make orders by consent where parties agree on the amount of child maintenance due as part of the overall financial negotiations. Importantly, however, the Family Court’s jurisdiction can only be excluded for 12 months, at which point either party will be at liberty to apply to the CMS for an assessment of the amount of child maintenance due. The maintenance can be ordered to be paid until the end of the child’s education or their 18th birthday.

Under limited circumstances, a child can apply for financial provision under Schedule 1 of the CA 1989 when they are over 18, for example, to assist with educational or vocational training.

Decisions on Upbringing

Decisions on schooling, medical treatment, religion and holidays require the consent of both parents as they involve the exercise of parental responsibility. In circumstances where there is a disagreement, the involvement of the court is necessary. 

Where parties apply for the court to adjudicate on such disputes, the application is called a ‘specific issue’ application and is made on Form C100. Where a parent is concerned that the other parent is going to make a decision without their consent that involves the exercise of parental responsibility, such as changing the child’s school, an application to court can be made to prohibit this from happening. This is called a ‘prohibited steps’ application and is also made on Form C100.

Parental Alienation

‘Parental responsibility’ is not a term that is defined in law. The Family Court focuses on the behaviour of the parents and the impact of that behaviour on the children involved. Parental alienation is become an increasingly contentious topic in the Family Court.

In the case of Re S (Parental Alienation: Cult) [2020] EWCA 568, Peter Jackson LJ stated that there is an obligation on the court to respond with “exceptional diligence and take whatever effective measures are available”. Any decision the court will take will be guided by Section 1(3) of the CA 1989. The court has significant case management powers including:

• Directing the Cafcass officer, who is a registered social worker who makes welfare recommendations to the court during Children Proceedings, to consider the issue of parental alienation when they make ‘welfare recommendations’ when they do their Section 7 report.
• Ordering a ‘Fact Finding Hearing’ so that findings of fact can be made on the issue.
• The court has powers under rule 16.4 of the FPR to make a child a party to proceedings. When this happens, a Guardian is appointed who will give the court an independent view of proceedings from the child’s perspective. The Guardian will instruct a solicitor to represent the child.

If at a final hearing the court makes serious findings of parental alienation, it can, in extreme cases, order a transfer of residence so that a child is removed from the alienating parent.

Children’s Evidence

Section 96(2) of the CA 1989 provides that the unsworn evidence of a child may be heard by a court in civil proceedings if, in its opinion, the child understands that it is their duty to speak the truth and that they have sufficient understanding to justify their evidence being heard, even though, in the court’s opinion, they cannot understand the nature of an oath.

The CA 1989 does not, therefore, impose a minimum age for children to give evidence. Further, the case of Re W [2010] UKSC 12 held that there is no presumption against a child giving evidence in court. Whether a child should give evidence will depend on the circumstances of the case and, in particular, whether the giving of evidence will be contrary to the child’s welfare.

The Family Court may order that the child’s wishes and feelings are in written form, where oral evidence is deemed inappropriate.

See 2.9 Alternative Dispute Resolution (ADR).

On 30 January 2023, a 12-month pilot, called the ‘Reporting Pilot’, was launched in respect of children cases in Cardiff, Leeds and Carlisle, and this pilot will be extended in 2024. Accredited journalists and bloggers can report from court. This is known as the ‘transparency principle’. Any reporting will be subject to protecting the anonymity of children, known as the ‘anonymity principle’.

The judge will have discretion as to any Transparency Order made in Children Act proceedings. Under the standard template Transparency Order, which remains in place until any relevant child turns 18, there are restrictions on identifying details, including the anonymisation of the parties and the relevant children and other identifying information. Local authorities, NHS trusts and legal representatives can be identified.

In broad terms then, the media are able to report on child cases but the anonymisation of children will be a central concern of the Family Court. The Family Court will also be concerned with ‘jigsaw identification’ and, as such, other identifying materials about a child may be anonymised.

Anonymisation matters fall within the exercise of a judge’s discretion and are not decided upon by the parents. As explained above, all children are anonymous in Children Act proceedings, unless the Family Court orders otherwise.